ALZ v FLK
[2013] NZHC 820
•18 April 2013
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV 2012-441-736 [2013] NZHC 820
UNDER the Care of Children Act 2004
IN THE MATTER OF an appeal against a decision of the Family
Court at Napier
BETWEEN ALZ Appellant
ANDFLK Respondent
Hearing: 15 April 2013
(Heard at Wellington)
Counsel: S Jefferson and R Buchanan for the Applicant/Appellant
C Hickman for the Respondent
M Hamilton for the Children
Judgment: 18 April 2013
JUDGMENT OF MALLON J
Contents
Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [2] The evidence ...................................................................................................................................... [8] The requirement for leave ................................................................................................................ [9] Is there a special reason here? ........................................................................................................ [10]
Result ................................................................................................................................................ [21]
ALZ v FLK HC NAP CIV 2012-441-736 [18 April 2013]
Introduction
[1] The appellant (the father) applies for leave to adduce further evidence at an upcoming appeal. The appeal is against a Family Court decision concerning the care arrangements for his children. The evidence concerns the mother’s actions in enrolling their eldest child at a state school contrary to a Family Court order that the children attend a Catholic school.
Background
[2] The decision against which the appeal is brought is one of three decisions
relating to the care of the parties’ four children.
[3] The first decision was given on 14 December 2010.1 In that decision the Family Court made an interim decision granting day to day care of the children to the mother with contact arrangements for the father. Because the decision was an interim one, the father’s application for day to day care and a direction that they be relocated to Australia (where the father lives) was not dismissed but was held in abeyance. The decision to give the mother interim day to day care was made notwithstanding the Judge’s view that the mother’s actions had alienated the father from the children. The mother was warned that if her behaviour did not improve the Judge was likely to make an order that the children relocate to Australia and be placed in the day to day care of their father. A review was to take place in June 2011.
[4] The second decision arose from the first review of the interim decision, which was heard on 17 June 2011. The Family Court decision was delivered on
5 July 2011.2 That decision continued the interim parenting order, with some
variation to update times and dates for the father’s contact. The Judge considered
that there had been an improvement in the mother’s behaviour, with a consequent improvement in the father’s relationship with the children. The mother’s change in
1 ALZ v FLK FC Napier FAM-2007-041-725, 14 December 2010.
2 ALZ v FLK FC Napier FAM-2007-041-725, 5 July 2011.
behaviour was viewed by the Judge to be a “work in progress” and that “there ought
to be more time afforded to test more accurately her statements of change”.3
[5] That second decision was appealed by the father. Leave was sought to adduce further evidence on that appeal. Leave was declined by the High Court in a decision given on 13 October 2011.4 The High Court dismissed the appeal from the second decision on 7 November 2011.5 In dismissing the appeal the Judge said:6
In his final submission to me, Mr Buchanan said that the father is strongly of the view that the few steps taken by the mother to show reform are contrived and disingenuous. His fear is that the mother will paint whatever facade is needed to depict the changes that the Court requires. As soon as she is granted permanent day-to-day care the facade will be ripped away to reveal a fortress which both confines the children and excludes the father. I fear he might be right. It might be that this is a case which the Family Court will have to keep under regular review for some time yet. In my view, despite the general desirability of achieving certainty in cases involving the care of children, Judge Callinicos has taken the correct approach in holding the door open to a change of day-to-day care and relocation to Australia to prevent the father’s fears from being realised.
[6] The third decision arose from the second review of the interim decision. The hearing for that review took place on 17 May 2012 and 5 September 2012. The Family Court decision was delivered on 11 October 2012.7 In that decision the Judge made a “final” order granting day to day care of the children and setting out the contact arrangements for the father.8 In making that decision the Judge considered that the mother had “transformed to a remarkable degree” and that this change was “palpable to all but [the father]”.9 The Judge commented adversely on the father’s behaviour and was “firmly” of the view that the father was not focussing on what is best for the children.10 He commented that the father would
“unquestionably hold a deep concern” that finalising the orders would “serve to act
3 At [54].
4 ALZ v FLK HC Napier CIV-2011-441-581, 13 October 2011.
5 ALZ v FLK HC Napier CIV-2011-441-581, 7 November 2011.
6 At [27].
7 ALZ v FLK [2012] NZFC 3594.
8 The decision was a final order in that further regular reviews were not to be scheduled. The Judge considered that the Court was in a position to make a final assessment of the parenting orders commenting that they were final “in so much as any order pertaining to children can be final”: at [62].
9 At [24].
10 At [49].
as a green light for a return to the mother’s alienating behaviours”.11 He gave reasons for his assessment that this was unlikely.
[7] The father filed an appeal against that third decision. The grounds of the appeal include that there had been a demonstrated continuation of the mother’s alienating behaviours and that, contrary to the Judge’s findings, the mother had continued to obstruct contact. The notice of appeal contends that the Family Court ought either to have ordered a further review hearing or alternatively to have made a final decision changing the children’s day to day care into the father’s care and directing the children’s relocation to Australia. The appeal is scheduled to be heard on 8 May 2013 in the High Court at Napier.
The evidence
[8] The father seeks to adduce evidence that the mother has enrolled the eldest daughter at a non-Catholic secondary school. This material is annexed to a proposed affidavit from the father. It includes a copy of the guardianship order dated
14 December 2010. That order provides that the children “are to remain enrolled in Catholic Schools”. It goes on to provide the specific schools in which the children are to be enrolled. These are primary and intermediate schools. It does not specify the secondary schools they are to attend. The proposed evidence also includes copies of the email correspondence between the parties concerning the daughter’s schooling (that correspondence pre and post dates the Family Court’s third decision), correspondence between the parties’ legal advisers on this topic and correspondence with the school.
The requirement for leave
[9] Rule 20.16 of the High Court Rules applies to the application to adduce further evidence. Under that rule, the evidence may only be adduced with the leave of the Court.12 The Court may grant leave only if there are “special reasons” for
hearing the evidence. An example of a special reason is evidence that relates to
11 At [63].
12 High Court Rules, r 20.16(2).
matters that have arisen after the date of the decision appealed against and that is or may be relevant to the determination of the appeal.13 The further evidence sought to be adduced here is said to be within that example. In considering whether there are special reasons for hearing the evidence in the present case, the welfare and best interests of the children are relevant.14
Is there a special reason here?
[10] The first question is whether this evidence relates to matters that have arisen since the decision appealed against. Counsel for the mother submits that the issue as to the school at which the daughter was to be enrolled is not a new issue as the correspondence between the parties shows. It was also briefly raised at the Family Court hearing. She correctly accepts, however, that what is new is that the daughter has been enrolled at a state school against the wishes of the father and in breach of the Family Court order.
[11] The next question is whether the evidence is or may be relevant to the appeal. For the father it is said that the evidence is relevant to the appeal because it is an illustration that, contrary to the Family Court Judge’s assessment of the mother, she had not altered her behaviour regarding the father’s involvement with the children. The proposed evidence is said to be a very good example of the mother’s ongoing alienating behaviours. As the father puts it in his affidavit, he believes that the mother’s conduct on this issue reveals that she has not changed at all and that her evidence to the contrary was an “insincere facade”.
[12] Counsel for the mother submits that the new evidence is not sufficiently cogent because it will not influence the determination of the appeal. This is said to be because the Family Court Judge made very strong findings which could not be said to be wrong because of this one issue. Counsel for the mother submits that it could not result in the day to day care reverting to the father. She submits that if the
evidence is adduced, it will be the mother’s evidence that the guardianship order was
13 Rule 20.16(3).
14 WH v Chief Executive Ministry of Social Development [2008] NZFLR 1069 (HC) at [31] cited in
QH v Chief Executive of the Ministry of Social Development [2013] NZHC 240 at [19].
not at the forefront of her mind when she made the enrolment decision. She will give evidence of her understanding of that order.
[13] The lawyer for the children submits as follows:
In counsel’s submission the evidence is cogent, likely to be material, and
was not available at hearing. In particular:
(a) There is clear cogent evidence of discussions via email between the
parties about [the daughter’s] schooling
(b) It is clear that there was a Court order that the children attend
Catholic schools
(c) It is clear that [the mother] has enrolled [the daughter] at [a non- Catholic school] where she now attends
(d) This is an incident that occurred after the Family Court hearing and therefore the evidence was not available at hearing
(e) In so far as it is evidence that [the mother’s] actions resulted in a breach of the Court order, it is new fresh evidence. That there are difficulties in communicating and agreeing between these parents, is not new evidence
(f) The evidence is material in that [the mother’s] actions are contrary to a Court order. If [the mother] has intentionally breached a Court order this clearly has implications for her ability to foster the relationship between the children and [the father], and her willingness to alienate the children from him.
[14] I agree with the father and the lawyer for the children. The Judge found that the mother’s behaviour had transformed. At this stage it is not known whether the mother knew she was acting contrary to the guardianship order. Her proposed evidence about this will likely need to be the subject of cross-examination. If the evidence adduced establishes that the mother has deliberately breached a court order on a matter that she knew was an important one for the father, that is relevant to whether the Judge was correct in his assessment that the mother was not likely, as the father thought, to view a final order as a “green light” for a return to her previous behaviour. I agree that the evidence is unlikely in and of itself to persuade the High Court judge hearing the appeal that the children should relocate to Australia so as to be in the day to day care of their father. But the likely outcome of a successful appeal, as acknowledged by the father’s counsel, is a return to interim orders with a
further review to be scheduled at some appropriate time. The evidence is relevant to this.
[15] The proposed evidence is therefore within the example of what may constitute a special reason. The remaining question is whether there are other reasons why leave should not be granted. Counsel for the mother submits that it is not in the interests of the children for leave to be granted. She submits that if the evidence is adduced the appeal will not be able to proceed on 8 May 2013 when it has a hearing date. She says that if it is to be contended that the mother has breached a court order, then the mother will want to reply with evidence that the father has breached court orders by not having contact with the children in accordance with such orders. She submits that a delayed hearing impacts upon the children and that it is in their interests that there be certainty sooner rather than later.
[16] I accept the father and the lawyer for the children’s response to this submission for the mother. The reply evidence from the mother would be confined to why the daughter was enrolled in a state school despite the guardianship order and despite not having the father’s agreement to this course. If the hearing has to be adjourned, I agree with the lawyer for the children that it is more important for the children to get things right than to proceed in haste. Although it seems likely that the
8 May 2013 hearing will need to be adjourned, the only oral evidence required will be cross-examination and any re-examination arising from that. That should take no more than half a day given the narrow issue that is involved.
[17] The lawyer for the children and counsel for the mother submit that leave should not be granted because there is a high risk that the new evidence will overshadow the comprehensive record from the Family Court hearing. In making that submission they rely on a point made in the application for leave to adduce
evidence on the appeal from the second decision.15
15 In ALZ v FLK, above n 4, Kós J noted at [20] that this Court should be careful to avoid admitting updating evidence to such an extent that the Court ends up “conducting a quite different hearing, on different evidence” from the first instance decision-maker. He further stated that there is a
risk that the new evidence and the focus on it could improperly outweigh “the less tangible, but more comprehensive, evidence being reheard”.
[18] However the nature of the evidence sought to be adduced here is different from the evidence which the father sought to adduce in relation to his appeal from the second decision. On that application, the father sought to adduce updating evidence of the father’s contact with the children, updating evidence of the behaviour of the mother towards him, updating evidence of the attitude of the children regarding their father and evidence that the mother’s attitude to the father remained unchanged. The evidence was therefore not confined to a specific event. It covered the range of matters considered in the second decision and sought to update all of that evidence. In that case it is easy to see how the updating evidence could become the focus of the appeal. In the present case, it is difficult to see how the evidence on this one issue could overwhelm the extensive material that will be before the High Court judge on the appeal.
[19] Moreover, the principal reasons for the refusal of leave to adduce the proposed updating evidence in that case were that the evidence was regarded as likely to have little bearing on the appeal and, if the appeal was unsuccessful, that evidence could be adduced at the further review which was to take place. That case is therefore distinguishable from the present. Here the evidence is in support of an appeal which seeks to overturn the final parenting orders that were made.
[20] I conclude that there are special reasons to permit the proposed evidence to be adduced. It is in the children’s interests that they are not alienated from their father. The proposed evidence is relevant to the Judge’s findings about this which led to the final orders he made. It is evidence that relates to matters that have arisen after his decision. It is narrow in scope. It will not improperly overshadow the record on which the appeal will be heard. If it assumes any particular importance on that appeal, that will only be because of the view that the appeal judge takes of its probative value.
Result
[21] The application for leave to adduce further evidence by way of the father’s proposed affidavit (which is annexed to the affidavit filed in support of the application for leave) is granted. The mother has leave to file an affidavit in reply.
That reply must relate only to the issue of why the daughter was enrolled at a state school contrary to the guardianship order. In case there is any prospect of retaining the 8 May 2013 hearing, the affidavit in reply should be filed promptly. I direct that it be filed within 10 days of today’s date.
Mallon J
Solicitors: S Jefferson
Willis Toomey Robinson, Napier
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